ACCEPTABLE USE POLICY AND LEGAL DISCLAIMERS
All users (hereafter referred to as “Clients”) of SmartBox, LLC (doing business as “SmartBox Web Marketing” and hereafter referred to as ”SmartBox”) services indicate their agreement to be bound by the following Acceptable Use Policy (hereafter referred to as “AUP”) and all of its incorporated terms and conditions through their use of SmartBox’s services. Additional terms and conditions may be added to this Acceptable Use Policy at the sole discretion of SmartBox, at any time, or through written agreement between SmartBox and Client. Client agrees to the following:
1. Term: The Term and service charge for a marketing campaign is for a period of eighteen (18) months (“Initial Term”) unless indicated otherwise through a signed agreement between Client and SmartBox. The Initial Term shall begin on the date of SmartBox’s receipt of Client’s signed SmartBox Web Marketing Services Enrollment Agreement (hereafter referred to as “Agreement”). The Agreement shall automatically renew for additional one (1) month periods (“Informal Renewal Terms”), unless at least thirty (30) but not more than sixty (60) days prior to the end of the Initial Term or Renewal Term, as applicable, Client provides written notice to SmartBox of its intent not to renew. Client shall be charged in not less than one (1) month increments. Client may also elect to renew their contract with SmartBox at anytime during their Initial Term or during Informal Renewal Terms and add additional months of services to their contractual relationship (“Formal Renewal Term”). All Formal Renewal Terms are added to the end of a Client’s Initial Term. In the event Client elects or forces early termination of the Agreement (“Early Service Termination”), Client shall be responsible for all charges to the end of the month of termination, the applicable liquidated damages agreed to in Section 8 of the Agreement and this AUP, and any other fees or charges as provided there in, all of which become immediately due and payable upon such an occurrence. Expiration of the Initial Term or any Informal Renewal Term or Formal Renewal Term or Early Service Termination by Client shall not excuse Client from payment of all unpaid, accrued charges due. Client shall not be entitled to ownership nor intellectual property rights of any creative designs, content, domain names (whether provided by Client or SmartBox), or deliverables created under the Agreement unless the Initial Term and applicable Renewal Terms are completed and paid in full or any applicable fees are paid.
2. Service to Client: In consideration of monthly payments made by Client to SmartBox, SmartBox shall provide internet marketing services (“Service”) to Client for the Term of the Agreement. Client agrees that these marketing services are further described in Client’s enrollment information but are subject to change based off of market conditions including changes to Google’s recommended strategies, SmartBox marketing strategy, or overhead expenses. In the event that marketing services are changed, SmartBox will provide Client with services of equal or greater market value (as determined solely by SmartBox) to their previous marketing services. If SmartBox offers any type of market exclusivity to Client, SmartBox shall solely determine the scope of the exclusivity based upon market share, market size, market demographics, and the operation and/or specialities of Client’s dental practice, among other factors. SmartBox may build a variable management fee into any budget listed for pay-per-click advertising on enrollment information. Furthermore, Client understands that SmartBox’s Service requires cooperation and minor collaboration from the Client. As such, Client shall follow the timeframes and guidelines provided by their Client Success Manager. If Client deviates from these time frames or guidelines, SmartBox shall not be responsible for any resulting inability to deliver any aspects of Client’s Service and/or any delays that result to Client’s Service. In the event Client elects Early Service Termination or forces Early Service Termination by violating the Agreement or the AUP, SmartBox may immediately cease Service to Client and shall not have any obligation to continue work and/or finish any deliverables that would have otherwise been provided to Client. SmartBox may terminate this Agreement without cause at any time upon thirty (30) days’ written notice to Client by USPS mail. Causes justifying immediate termination without notice include, but are not limited to: violation of any law, non-payment of fees, or breach of the Agreement or AUP.
3. Payments by Client: In consideration of Service performed by SmartBox, Client shall provide a monthly payment to SmartBox for the duration of the Agreement. The amount of the monthly payment will be set by an enrollment form which is incorporated into the Agreement. The amount of of the monthly payment will remain the same for the duration of the Initial Term of the Agreement unless modified by Client. If a Client agrees to a Formal Renewal Term at a different level of Service than originally agreed to during the Initial Term, SmartBox shall upgrade or downgrade Client’s Service and modify the monthly payment accordingly for the remainder of Client’s Initial Term and the duration of Client’s Formal Renewal Term. If Client agrees to a Formal Renewal Term at the same level of Service prior to the completion of the Initial Term, any changes in Service price will not be applied until the completion of the Initial Term. SmartBox may change the payment amount for any Informal Renewal Terms with prior written notice. Upon acceptance of the Agreement, Client must provide SmartBox with a valid credit card number from an issuer that is accepted by SmartBox. If Client elects to pay for their service on a monthly basis, Client authorizes SmartBox to charge the credit card number provided by Client ("Credit Card") and/or initiate automatic bank drafts (“ACH Debits”) for all charges arising from Client's use of the Services. Client agrees to notify SmartBox of any change to the Credit Card information including, but not limited to, changes in account number, expiration date, or billing address. SmartBox shall not be responsible for any charges made by Client’s bank or Credit Card issuer to Client's personal financial accounts for exceeding credit limit, insufficient funds, or other reasons. Returned checks, chargebacks on Credit Cards, and declined Credit Card payments will incur a fee of $30.00 per occurrence. Client must dispute any charges for the Service in writing within thirty (30) days of the date of the charge by SmartBox or Client waives any objection and further recourse. Written statements disputing charges must be sent by certified mail to SmartBox. If the Client elects to prepay for their Service and elects/forces Early Service Termination, SmartBox shall not issue any monetary refunds to the Client but will provide credit on the Client’s account that can be used for other SmartBox products or services. SmartBox shall have no obligation to issue any refund to Client but may do so at their sole discretion. In the event the client defaults on its obligations to SmartBox, the signer of the Agreement shall be personally obligated to fulfill the financial terms of this agreement.
4. Ownership of Marketing Materials: (A) All marketing materials (including written content and videos) produced by SmartBox for the Client become the property of the Client following the Initial Term of the Agreement. Client grants to SmartBox a non-exclusive, worldwide license to use any previously produced marketing materials as part of Client’s SmartBox Service. In the event Client breaches any part of the Agreement or the AUP, and the website is taken offline by SmartBox, SmartBox reserves the right to decline to provide a backup of all materials until the breach of the Agreement or AUP is rectified. (B) Client may transfer a domain name (URL address) to SmartBox or request that SmartBox provides a domain name. Client shall retain ownership of any domain names; however, SmartBox shall control the domain names until the expiration of the Agreement. In the event Client owes an outstanding balance to SmartBox, SmartBox may hold a Client’s provided or transferred domain names until the balance is paid. (C) Any telephone number provided by SmartBox ("Number") to the Client will be leased and not sold. SmartBox retains sole ownership of any Number provided to a Client. A Client is not to use the Number with any other device or service other than the SmartBox service without the express written permission of SmartBox. SmartBox reserves the right to change, cancel, or move the Number at its sole discretion.
5. Responsibility for Legal Compliance: Client agrees that he or she is solely responsible for complying with such laws, taxes, and tariffs, related to or affecting Client’s site and will hold harmless, protect, indemnify, and defend SmartBox and/or its owners, employees, affiliates, vendors, and the like from any claim, suit, penalty, tax, tariff, damage, loss, or liability arising from Client’s use of Internet electronic commerce, including but not limited to all attorney’s fees and costs. Internet electronic commerce on Client’s site is not the responsibility of SmartBox. If Client provides information on the applicable federal/state/international advertising regulations, SmartBox shall use reasonable efforts to ensure advertising material is in compliance with the regulations. However, Client always assumes all risk for using the Service and releases SmartBox from any liability arising from using marketing materials produced by SmartBox.
6. Responsibility for Taxes and Fees: Client is solely liable for any taxes or fees payable for using Service. SmartBox bills in United States’ dollars and is based in the United States. Client shall be responsible for any costs relating to applicable international taxes, fees, currency conversion fees, fluctuations in exchange rates, international transaction fees on credit card payments or bank drafts, taxation assessed by foreign governments on SmartBox or Client, and taxes or travel/work visa costs incurred by SmartBox when traveling to an international destinations for purposes of a dental practice visit or video shoot.
7. Termination of Agreement by Client: If Client wishes to terminate SmartBox’s Service, he or she may do so with thirty (30) days’ written notice. Upon completion of the Cancellation Procedure (see below), SmartBox will stop billing the credit card on file at the next scheduled billing period for the cancelled website or campaign. SmartBox will not prorate the monthly charge for the final month of membership and will not refund charges made prior to cancellation. After cancellation, Client is still responsible for any outstanding charges, including charges related to the early ending of the agreement (“Early Service Termination.”) The SmartBox cancellation policy is designed to protect Client’s practice from unethical actions by competitors, employees, or others that may harm their practice. Step #1: Client or Client’s designated marketing manager (as noted in SmartBox’s registration file) must request cancellation in writing and sign the request. Step #2: SmartBox shall send Client the paperwork needed to close their account, pay any outstanding balances, and release their website. Step #3: After reviewing the paperwork, Client shall schedule an “Exit Interview” of approximately five (5) minutes to confirm the request. Step #4: Client shall return the signed paperwork needed to close their account and pay any outstanding balance with SmartBox. SmartBox shall continue to charge Client’s credit card and/or bank account for their monthly service fees until the appropriate paperwork and payments have been submitted by Client. At the time of Early Service Termination, any outstanding balance must be settled as Early Service Termination does not dismiss any outstanding invoices or fees. Client may not close their account by canceling their Credit Card. If Client cancels their Credit Card, SmartBox shall continue to treat Client’s account as open and continue the billing cycle, potentially resulting in a past due account. SmartBox may turn over any accounts with outstanding balances to a third-party collection service. It is imperative that account cancellation is done by the aforementioned process to ensure account closure.
8. BREACH OF AGREEMENT BY CLIENT/ EARLY SERVICE TERMINATION: SMARTBOX DOES NOT ANTICIPATE THAT CLIENT WILL VIOLATE ANY ASPECT OF THIS AGREEMENT, INCLUDING A FAILURE TO PAY FOR SERVICE OR MAKE A LATE PAYMENT FOR THE SERVICE. FEES, CHARGES, AND ASSESSMENTS MAY BE ASSESSED AS LIQUIDATED DAMAGES INTENDED TO BE A REASONABLE ESTIMATE ADVANCE ESTIMATE OF SMARTBOX’S COSTS RESULTING FROM LATE PAYMENTS, NONPAYMENTS, AND OTHER VIOLATIONS OF THE AGREEMENT. THESE COSTS WILL BE DIFFICULT FOR SMARTBOX TO CALCULATE OR PREDICT WHEN SETTING SUCH FEES, CHARGES, AND ASSESSMENTS, BECAUSE SMARTBOX CANNOT KNOW IN ADVANCE: (A) IF CLIENT WILL PAY FOR SERVICE ON A TIMELY BASIS, IF EVER; (B) IF CLIENT MAKES A LATE PAYMENT, WHEN CLIENT WILL ACTUALLY PAY; OR (C) WHAT COSTS SMARTBOX WILL INCUR BECAUSE OF CLIENT’S POTENTIAL LATE PAYMENT, NONPAYMENT, OR OTHER VIOLATION OF THE AGREEMENT. BOTH PARTIES AGREE THAT ANY SUCH LIQUIDATED DAMAGES FEES ARE NOT A PENALTY. CLIENT AGREES THAT SMARTBOX WOULD INCUR SUBSTANTIAL ECONOMIC DAMAGES IF CLIENT WERE TO VIOLATE THE AGREEMENT AND THAT LIQUIDATED DAMAGES REPRESENTS A FAIR, REASONABLE, AND APPROPRIATE ESTIMATE OF THE ACTUAL DAMAGES SUFFERED BY SMARTBOX. ACCORDINGLY, CLIENT SHALL BE LIABLE FOR THE FOLLOWING SCHEDULE OF LIQUIDATED DAMAGES: SERVICE SUSPENSION, TERMINATION, REINSTATEMENT AND/OR TRANSFER FEE: $150.00 PER HOUR OF SERVICE. LATE PAYMENTS: CLIENT AGREES TO PAY LIQUIDATED DAMAGES EQUAL TO TWO PERCENT (2%) OF THE ORIGINAL CHARGE FOR ALL PAYMENTS MADE MORE THAN FOURTEEN (14) DAYS PAST THEIR DUE DATE. IN ADDITION, CLIENT SHALL PAY LIQUIDATED DAMAGES FOR VIOLATIONS OF THE AGREEMENT OR VOLUNTARY ACTIONS THAT RESULT IN EARLY SERVICE TERMINATION. THESE DAMAGES ARE CALCULATED AS A PERCENTAGE OF THE “TOTAL PACKAGE PRICE” (THIS AMOUNT IS CALCULATED BY MULTIPLYING THE CLIENT’S AGREED TO MONTHLY PAYMENT BY THE EIGHTEEN (18) MONTH TERM OF THE AGREEMENT) FOR THE CLIENT’S MARKETING SERVICES PACKAGE BASED OFF WHICH MONTH INTO THE AGREEMENT THAT THE CLIENT REQUESTS/REQUIRES/FORCES EARLY SERVICE TERMINATION. THE LIQUIDATED DAMAGES FOR EARLY SERVICE TERMINATION DURING CLIENT’S INITIAL TERM BEGIN AT A DOLLAR AMOUNT EQUAL TO THIRTY-SIX PERCENT (36%) OF THE TOTAL PACKAGE PRICE, AND DECLINE AT A RATE OF TWO PERCENT (2%) FOR EACH MONTH PAID INTO THE INITIAL TERM. IF CLIENT SIGNS UP FOR A FORMAL RENEWAL TERM, THE LIQUIDATED DAMAGES FOR EARLY SERVICE TERMINATION BEGIN AT A DOLLAR AMOUNT EQUAL TO THIRTY-SIX PERCENT (36%) OF THE TOTAL PACKAGE PRICE OF ANY REMAINING MONTHS ON THE INITIAL TERM AND THE TOTAL PACKAGE PRICE OF THE FORMAL RENEWAL TERM (“TOTAL RENEWAL PACKAGE PRICE”), AND DECLINE AT A RATE OF TWO PERCENT (2%) FOR EACH MONTH PAID INTO THE FORMAL RENEWAL TERM. IF CLIENT UPGRADES OR DOWNGRADES THEIR SERVICE DURING THE COURSE OF THIS AGREEMENT, SMARTBOX SHALL PROPORTIONALLY CREDIT THE UPGRADED/DOWNGRADED PAYMENTS AS A PERCENTAGE OF THE ORIGINAL MONTHLY PAYMENT WHEN CALCULATING LIQUIDATED DAMAGES.
9. LIMITATION OF LIABILITY: EXCEPT AS EXPRESSLY PROVIDED HEREIN, SMARTBOX AND ITS OWNERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE (COLLECTIVELY “SMARTBOX PARTIES”), MAKE NO WARRANTY IN CONNECTION WITH SMARTBOX HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SMARTBOX PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST DATA, OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE SMARTBOX HARDWARE, SOFTWARE, OR SERVICES. CLIENT AGREES THAT IN THE EVENT OF ANY DISPUTE, CLIENT’S SOLE AND EXCLUSIVE REMEDY SHALL BE THE RETURN OF FEES PAID TO SMARTBOX OR REDUCTION OF FEES PAYABLE TO SMARTBOX.
10. Legal Disclaimers: (A) If any provision of the Agreement or AUP is held invalid or unenforceable for any reason, the remaining provisions will continue in full force. The waiver by either party of a breach of any provision of this Agreement or AUP will not operate or be interpreted as a waiver of any other or subsequent breach. (B) No agency, partnership, joint venture, or employment relationship is created by the Agreement or AUP and neither party has the power to bind the other party. (C) SmartBox shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, riot, war, government intervention, embargoes, labor difficulties, equipment failure, late delivery by suppliers, or other difficulties of SmartBox as may occur in spite of SmartBox’s best efforts. (D) Client shall defend SmartBox, its owners, employees, agents, vendors, and the like against any third-party claim, action, suit, or proceeding arising as a result of Client's use of SmartBox’s hardware or services and indemnify SmartBox, for all losses, damages, and expenses incurred by SmartBox, as a result of any judgment entered against SmartBox, in any such claim, action, suit, or proceeding. (E) The Federal Communications Commission (FCC) does not require that SmartBox provide E911 Service to Clients who use SmartBox services within the United States. (F) Online advertising inherently runs risks of algorithmic changes of search engines. SmartBox offers no guarantee of present or future placement in any specific search engine. (G) This Agreement will be governed and construed in accordance with the laws of the State of Indiana. Client agrees to submit to personal jurisdiction in Floyd County, Indiana, and further agrees that any cause of action or dispute arising under the Agreement and AUP will be litigated in the courts of Floyd County, IN, U.S.A. (H) In the event that SmartBox must take action to enforce the terms of the Agreement or AUP, including but not limited to collection of past due payments or fees, regardless of whether a cause of action is filed in any court, SmartBox shall be entitled to reimbursement from Client of all its attorney’s fees and costs.
11. Website Hosting: For the purposes of Client's Service, SmartBox shall provide a website and website hosting for Client according to the following guidelines: (A) Smartbox shall provide dedicated or shared server computers with an Internet address for storage and access of marketing materials and the Client’s website including reasonable bandwidth and storage as determined solely by SmartBox. (B) If Client requires additional bandwidth or storage, SmartBox shall negotiate in good faith to accommodate Customer's needs subject to SmartBox’s server computers’ ability to provide the requested bandwidth or storage. (C) SmartBox shall back up Client’s Website in a commercially reasonable manner. However, SmartBox is not responsible for lost content and marketing materials. Website backups will be stored by SmartBox for no longer than fourteen (14) days. Backups are intended for disaster recovery, not the restoration of individual files. (D) SmartBox shall provide hosting services for the Website that meet commercially reasonable standards for, among other matters, packet loss, accessibility, latency, availability, and throughout, but cannot guarantee the same. (E) SmartBox shall take commercially reasonable steps to prevent unauthorized access to the Client’s website and any confidential Information stored on SmartBox’s server computers, but cannot guarantee the same. (F) SmartBox shall employ best efforts in providing advance notice to Client of scheduled server computer/network outages, but cannot guarantee the same. (G) SmartBox provides no equipment, software, or communication connections to Client. SmartBox makes no representations, warranties or assurances that the Client's equipment, software, and communication connections will be compatible with SmartBox’s hardware and service. (H) Client acknowledges that SmartBox offers no means for Client to directly modify, add, delete, or otherwise change content stored on SmartBox's servers. (I) Client acknowledges that any websites and other marketing systems (such as auto-responders) will be built upon systems and platforms that are proprietary and the intellectual property of SmartBox. After completing the terms of the Agreement, Client is free to transfer their domain name, logo, website content, videos, images, auto-responder emails, and any other marketing content to another hosting provider. However, the CMS back-end the website is built upon, Zetetics Call Tracking system, and other systems are the exclusive intellectual property of SmartBox and are non-transferable, non-licensable, and only available to active SmartBox clients. (J) SmartBox is not responsible for any costs associated with downtime or for changes in any search engine or directory. (K) SmartBox shall also not be responsible for any other loss that may occur in the operation of the Client’s site.
12. Prohibited Uses of SmartBox Service: Neither SmartBox nor Client shall engage in any illegal use of Service, any malicious activities related to these Service, any promotion of illicit activities, any unsolicited bulk electronic mailings, or other abuse of these services. SmartBox reserves the right to monitor the use of the Service by Client. Should the Service Provider determine, at its sole discretion, the Client has committed any act which violates this AUP, the Service Provider reserves the right to immediately suspend or terminate Service with or without notice to the Client. If immediate termination is determined appropriate, and the termination is due to a violation of the law herein, Service Provider will report the offending activity to the appropriate authorities. The Service Provider will send notification by e-mail to the contact e-mail address on file for the Client in the event that an AUP violation which does not merit termination of Service is identified. Should the Client fail to respond and take action to correct an AUP violation identified in a notification from the Service Provider, the Service provider shall suspend the Service until acknowledgment is received. The following violations list provided is meant to serve as a guideline and not a complete enumeration of prohibited activities: (A) Client will notify the SmartBox to request permission prior to engaging in any activity which may impact the quality of service for other clients of SmartBox. (B) Client shall not engage in any illegal activities while using Service. This prohibition includes, but is not limited to: using the service in any way which violates Federal, State, Local, or International law; transmitting copyrighted material without authorization from the copyright holder; violating export control regulations. (C) Client shall not engage in any malicious activities while using Service. This prohibition includes, but is not limited to: willfully interfering with the regular operation of the Service provided by or through SmartBox; attempting to access any system which Client knows or reasonably should know that the Client is not authorized to access in the manner or to the extent attempted; hosting any deceptive material for the purposes of phishing; running any password cracking software; running root exploit kits against other servers; distributing viruses, worms, or trojan horses; forging or misrepresenting message headers in whole or in part; scanning networks; threatening or encouraging bodily harm or destruction of property; violating of the rights of privacy or publicity of an individual. (D) Client shall not engage in any promotion of illicit activity while using Service. This prohibition includes, but is not limited to, the promotion of: any activities prohibited by Federal, State, Local, or International law; any activities which result in the spread of computer viruses or other damaging programs or data files; any activities which violate export restrictions (including making non-exportable information or software available to foreign nationals as may be prohibited by law); hacking; gambling; circumvention of copyright or patent protection; exposure of any trade secret. (E) Client agrees to send bulk electronic mail only to those who have specifically requested to receive such mail and comply with all Federal, State, Local, and International laws governing the transmission of electronic mail. Client shall not engage in any promotion of any unsolicited bulk electronic while using Service. This prohibition includes, but is not limited to, transmitting any unsolicited commercial e-mail; transmitting any unsolicited bulk e-mail. (F) Client shall not engage in any spamvertising or related activities while using Service. This prohibition includes, but is not limited to, posting commercial, political, or advertising posts to public forums; issuing unsolicited trackbacks for the purpose of promotion; providing DNS resolution in support of unsolicited bulk electronic mailing; hosting a destination site linked from unsolicited bulk electronic mailing. (G) Client shall not engage in any spamvertising or related activities while using Service. This prohibition includes, but is not limited to, consistent overuse of shared resources to the detriment of other Clients; operating an open proxy server or using the Service as part of a proxy network. (H) Client shall not utilize an insufficiently-secure administration while using Service. This prohibition includes, but is not limited to,use of a null password, dictionary word as password, or any other form of authentication lacking reasonable secrecy from a third party as part of a root or user-level authentication scheme; allowing an unauthorized third party to establish root access to service provided by the service provider; allowing an unauthorized third party to establish user-level access to service provided by the service provider; operating an open mail relay.
13. Earnings and Income Statement : All income testimonials, projections, calculations, or estimates are NOT a guarantee that you will achieve same or similar results. We do NOT guarantee any income, of any kind, at any time. In addition, any income claims, testimonials, estimations, calculations, or projections, either posted online or via our client and customer mailing lists, are NOT to be considered AVERAGE EARNINGS. There can be NO assurance that any prior experience, success, or results can be used as an indication of your future success or results. Statements as to specific results, earnings claimed, or otherwise, as set forth in promotional literature provided by SmartBox, are not typical, and results will vary by client. Monetary and income results are based on many factors, including but not limited to work ethic, attitude, willingness to risk, and willingness to implement our programs and systems as designed and as described. SmartBox and our partners are NOT liable for any income not generated by our program.